- Hardcover: 352 pages
- Publisher: W. W. Norton & Company; 1 edition (September 30, 2013)
- Language: English
- ISBN-10: 0393073440
- ISBN-13: 978-0393073447
- Product Dimensions: 6.5 x 1.2 x 9.6 inches
- Shipping Weight: 1.4 pounds (View shipping rates and policies)
- Average Customer Review: 3.9 out of 5 stars See all reviews (9 customer reviews)
- Amazon Best Sellers Rank: #679,086 in Books (See Top 100 in Books)
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In the Balance: Law and Politics on the Roberts Court 1st Edition
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During his confirmation hearing, Chief Justice John Roberts described his role as a neutral umpire, applying the law without bias. Associate Justice Elena Kagan, however, stated that judges have the leeway to judge. Barack Obama, in discussing his criteria for judicial selections, spoke of the 5 percent of cases where the law is vague and judges must show the necessary “heart.” Of course, within that 5 percent are the politically and emotionally charged cases that have divided both the Supreme Court and the nation. Tushnet, a law professor at Harvard, examines how the Roberts court copes with some of these cases, ranging over issues of abortion, civil rights, gay rights, and Obamacare. Although noting the occasional unpredictability of justices, he makes clear that this is a politically and ideologically divided court that operates within, rather than above, national political debate and controversy. Tushnet effectively demolishes the concept that these cases are divided “on the legal merits,” which makes clear why appointments to the court are now such a vital power of the executive branch. --Jay Freeman
About the Author
Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law. He divides his time between Washington, DC, and Cambridge, Massachusetts.
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First off is an excellent discussion of the Obamacare decision and what may have motivated Roberts' surprising vote to uphold. Tushnet suggests that Roberts had not made up his mind by the time he had to vote, rather than as many argue he changed his vote for whatever reason. Many of us feel, however, his vote was an effort to avoid the Court receiving a massive "blackeye" had a bristling conservative decision terminated the statute. But all of this is thoroughly examined by Tushnet, who finds the tax rationale "plausible." A chapter is next devoted to the importance of appointments. The Roberts Court really began to take shape with the appointments of Alito and Sotomayor. And it is one of the author's persistent themes that the character of new appointments to the Court plays the major role in shaping its decisions. Given the issue of whether the Democrats will maintain control of the Senate after the 2014 midterms, this point is particularly significant.
Tushnet argues that the initial two years of the Roberts Court reflected more harmony, fewer 5-4 decisions, and less frequent dissents and concurrences than with the Rehnquist Court. But then with the more moderate O'Connor retiring, replaced by Alito, the character of the Court changed, and the role of Kennedy became more significant. The majority began to utilize procedural devices to place barriers to block certain types of cases, and more overruling of past decisions became evident. Interestingly, Tushnet argues that even in these earlier years, Roberts would sometimes vote liberal in order to overcome divisions within the Court. Perhaps he was trying to implement his representations to the Senate Judiciary Committee during his confirmation hearings which seemed to suggest that he wanted a more moderate and balanced Court, more inclined to defer action, than had been the situation under Rehnquist. Given his Obamacare vote, this observation by Tushnet is quite interesting.
Tushnet's chapter on the gun rights case is particularly effective, not only in explaining the legal issues in an understandable manner, but also because it is a small case study in how interest groups organize and push cases to the Court for resolving key issues. Here marks the emergence for the author of "originalism" as an interpretive approach, and he has some interesting observations to offer on this method. Discussing the contention that Roberts leads a "pro-business" Court, Tushnet examines a number of these alleged cases and concludes that this charge is reasonable accurate, but sometimes there are just legitimate differences in interpreting and applying Congressional statutes, some of which are designed to help business. His chapter on free speech decisions demonstrates just how complicated this area is.
Speaking of complicated areas of the law developed by the Roberts Court, Tushnet's chapter on the Citizens United campaign finance decision is so well done I almost began to understand what all the shouting is about. But it is not an easy chapter to digest and perhaps there is a bit too much complexity and detail--but it is a noble effort nonetheless. In conclusion, Tushnet suggests that a "canny" Roberts is playing a careful game to maximize his eventual control of the Court, given his relatively young age in comparison to Scalia, Thomas and especially Kennedy. But again, he raises the specter of Kagan as the spoiler to this pleasant vision for Roberts.
As always, Professor Tushnet has done his research, as the volume's ample notes attest. He is more inclined to tackle legal issues than Coyle, but this is his bailiwick so does it well. A book that so stimulates thinking about the Court is to be commended; this is just such a book.